“All animals are equal, but some animals are more equal than others.”
-George Orwell, Animal Farm
On 12 Sept 2025, the Hawai’i Supreme Court issued its decision in Hilo Bay Marina, LLC and Keaukaha Ministry LLC, v. State of Hawai’i; Board of Land and Natural Resources, State of Hawai’i. The state had imposed a deed restriction that if a landowner did not use the land for “church purposes only,” it would revert to the state. The court found that was state action advancing religion which is not allowed under the state Constitution. It also involved the state in religious business because the state would have to monitor the “church purpose only” clause. The state Supreme Court said they did not have to follow the U.S. Supreme Court (Cult) since it’s their state constitution and it has stronger protections.
Besides, the U.S. Supreme Court is wrong.
The concurring opinion by three judges was a barn burner. “Religious liberty, secular government, and social harmony depend on an unbreakable barrier between religion and state. A wall.” … “Foundational to American constitutionalism, the wall that separates church and state stands tall, wide, and invincible.” Packing my bags to move to Hawai’i now!
After outlining the historical strong support for the separation of church and state, and outlining the many early colonies that followed it, the absolute prohibition of spending any money, and the intent to keep government out of religion and religion out of government, the court said for eight pages that the Hawaiian constitution was meant to duplicate this strong history.
The Hawaiian Constitution is intended to reflect their multi-cultural and multi-religious character. It says, “We, the people of Hawaii, grateful for Divine guidance, and mindful of our Hawaiian heritage and uniqueness as an island State, dedicate our efforts to fulfill the philosophy decreed by the Hawaii State motto, ‘Ua ma uke ea o ka aina I ka pono (The life of the land is perpetuated in righteousness.”
They chose “Divine Guidance” over “god” to include everyone. Hawai’i is the most religiously diverse and tolerant state. They specifically included no grants to religious schools and no sectarian control in schools.
The judge then criticized the state attorney general who argued that because Hawai’i has interpreted Hawaiian law like the U.S. First Amendment law in the past, the ruling in the Kennedy v. Bremerton case by the Supreme Cult also rules Hawai’i. The majority disagreed, but this justice in his concurring opinion went on to say that the Supreme Cult’s decisions violate the First Amendment and Hawai’i would be wrong to rely on or follow their lead.
A state high court is the final word on its own state’s constitution and the Hawaiian Constitution is more protective than the federal, so they can interpret it more broadly. The U.S. Supreme Cult has no monopoly on correct constitutional interpretation – an understatement. Courts do not have to pay attention when the Supreme Cult’s opinions are not tethered to reality or history.
The Hawaiian judge said straight out that the Supreme Cult is on a mission based on their political philosophy, not the law. He compares the “originalism” that they claim to be following to trickery and imagination. As any sensible person knows, a constitution must adapt. Hawai’i looks to history and tradition, but that is not all. “Originalism’s sales pitch gaslights.” For sure.
The judge says Hawai’i uses the same structure to decide cases, i.e. text and interpretive canons; purpose and consequences relative to purpose; precedent; structure and design; and historical, social, and cultural context. But the Hawaiian court is also inspired by respect for human and nature’s dignity.
He also delivered a very-needed slap in the face to the U.S. Supreme Cult: “One more thing. This court strives for institutional competence.”
The Hawaiian judge talked about the cultural revival in the 1970s of Native Hawaiian culture and admitted that both church and state had harmed Native Hawaiian people. He referred to missionaries and the United Church of Christ’s “historical complicity in the illegal overthrow of the Kingdom of Hawaii in 1893.” In contrast, truth is a far cry from what comes out of the U.S. Supreme Cult’s mouth most of the time.
As the judge concluded, the result is “The Supreme Court’s recent religious clause cases wreck the relationship between free exercise and non-establishment.” He chastises Roberts for ignoring world history, the warnings of prominent early Americans, and the judiciary’s storied legal minds. He makes it clear that the Roberts court is no longer neutral on religion and is inviting the very harms it was intended to prevent i.e. coercion, exclusion, and violence.
Justice Sotomayor said as much, “[T]he Court leads us to a place where separation of church and state becomes a constitutional violation.” Carson v. Makin, 596 U.S. 767, 810 (2022) (Sotomayor, J., dissenting).
As the Hawaiian judge points out, these new rights and privileges Roberts is giving religion can cause real harm to real people. Church teachings sustained slavery and Jim Crow for centuries along with the second-class citizenship of women. Just because I disagree with that belief is not being hostile to your religion. I may have my own beliefs or be free from religious beliefs all together.
Religious discrimination is strongly prohibited in Hawai’i. But the way the Roberts court has acted, certain religious viewpoints have more rights than others. As Orwell said in Animal Farm, all animals are equal, but some animals are more equal than others.
The judge then goes through the cases decided by the Robert’s court and explains how those decisions are in violation of the Constitution. He reviews Trinity Lutheran, Espinoza v. Montana Dept of Revenue, Carson v. Makin, and Kennedy v. Bremerton. In Carson v. Makin, the Hawaiian judge called out the Court in no uncertain terms. “The Supreme Court devalues democracy. Thirty-seven state constitutions block public funds from supporting religious entities… The Court aims to federally-repeal these state constitutional provisions. “The Court’s beliefs meddle with local and state governments. Forcing states to send public funds to religious entities federalizes public policy. By unprincipled fiat.”
The judge slammed Kennedy v Bremerton as “pretend law and pretend facts” that are “repackaged and whitewashed facts to achieve a desired outcome.” That is of course the most blatant case of the Supreme Cult simply lying about the facts to come to the decision they wanted. But it’s not the only one. He cites Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 350 (2023) (Sotomayor, J., dissenting) (disregarding all-inclusive, comprehensive findings to “reconstruct the record and conduct its own factual analysis”); and Ohio v. Env’t Protection Agency, 603 U.S. 279, 307, 300 (2024) (Barrett, J., dissenting) (“putting in [public] commenters’ mouths words they did not say” to block an EPA air pollution rule “based on an underdeveloped theory that is unlikely to succeed on the merits”).
And he slams the use of the “emergency docket” to blatantly lie e.g. Noem v. Vasquez Perdomo, 606 U.S. ----, 2025 WL 2585637 (Mem), at 6, 9 (Sep. 8, 2025) (Sotomayor, J., dissenting) (explaining - in “yet another grave misuse of [the Court’s] emergency docket” - that “all Latinos, U.S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction,” even though “[t]he Fourth Amendment . . .prohibits exactly what the Government is attempting to do here”).
No surprise to women that Kavanaugh flat out lied when he said ICE stops are brief and then citizens are let go.
The Hawaiian judge concludes that the Supreme Cult’s frequent factual lies, disdain for lower court judges, and illegitimate use of the “shadow docket” along with their abandonment of legal principles in order to make decisions based on their personal beliefs will hasten the downfall of the Rule of Law and democracy. It is the court itself that is a lawless Constitutional violation. They should be impeached.
As the judge explains, the court’s claim to “originalism” and “historical tradition” is simply a cover for discrimination since historically women, people of color, and indigenous people were not allowed to participate in the democratic process. The Supreme Cult reached back to the 1600’s in England for a case justifying that women did not have control over their own bodies.
And the judge makes it clear that these actions are not about law. “Today’s Court often rules not because the Constitution says so. But because partisan preferences and personal values say so.” The judge concludes by saying “Pretend law based on pretend facts and unsound methods has no place in Hawaiʻi law.”
Hats off to you, sir! We need more like this.
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